Sexual Privacy for Paedophiles and
Children

Paper delivered by Tom O'Carroll to the
Symposium on Sexual Privacy at the annual meeting of the International Academy
of Sex Research, Paris, June 2000

Introduction

I have been invited to speak to this symposium
about sexual privacy in relation to paedophilia, the very idea of which may seem
mind-bogglingly bizarre and exotic. How could paedophiles, whose sexual activity
is not just abhorred but severely penalised in the criminal law, have valid
claims to make concerning sexual privacy?

The answer, so far as my approach today is
concerned, is twofold.

Primarily I will
be suggesting that the private possession of so-called child pornography (a term
which has been used by law enforcement agencies to cover a multitude of alleged
sins including publicly exhibited artworks and advertising material) ought to be
allowed and that its suppression owes more to the social construction of
paedophiles as a category demonised for their alleged assault on innocence than
it owes to any actual need for the protection of children.

Secondly, I will
suggest that children themselves are being denied privacy for their emergent
sexual expression as part of a related phenomenon, namely society's heavy
investment in a false idea of their innocence. The idea that adults sexually
attracted to children may not in fact be demonic, and that children may not be
sexually innocent, logically suggests a third area of privacy interest and
debate in terms of society's attitude to non-coerced adult-child sexual
encounters. This third area lies beyond the scope of what I will be addressing
directly: my hope is that participants will ponder it in their own minds in the
light of the issues advanced via my two-part approach.

The first suggestion: Freedom of Posession

Freedom of speech

To begin the first element of my approach,
then: a judge in the Canadian province of British Columbia reached a
constitutional ruling last year that appalled and angered lobby groups,
legislators and media figures presenting themselves as concerned for the
protection of children against sexual assault. An appeal court later upheld the
decision.

This appeal judgement, in the case of the
Crown versus Robin Sharpe, supported the right to the private, personal
possession of child pornography. An astonishing decision, one which bucked the
trend around the world in the last quarter century of growing anxiety over child
porn and ever more draconian measures to stamp it out. So what the hell was
going on? Had these judges taken leave of their senses? Had they been abducted
by paedophile aliens and robotised to do as instructed?

I know of no evidence to support such an
hypothesis. A more parsimonious explanation is to be found in their concern
primarily with the concepts of proportionality, privacy, and freedom of thought,
belief, opinion and expression. They invoked the Canadian Charter of Rights
and Freedoms in support of the principle that action taken against any
social evil should not itself be disproportionately harmful in relation to the
level of harm caused by that evil. They reached the conclusion that although
some harm could, arguably, be imputed to the private possession of the
pornography in question, the harm caused by the police raiding the defendant's
home and seizing his private possessions, thereby invading his personal privacy,
was greater. Enforcing the law against mere possession of the pornography, they
decided, also infringed charter rights to freedom of thought, and that this
attack on a fundamental democratic right was not justified by the alleged harm
caused by the possession. What's more, a similar judgement upholding the right
to the private possession of child pornography was made late last year by the
Appeal Court of New Zealand in the case of Gerald Moonen.

How could this be? After all, everybody knows,
don't they, that child pornography is one of the greatest, most damaging evils
of our times. Well, rather than relying on "what everybody knows", the
judge who made the primary constitutional ruling in the case, Mr Justice Shaw,
had taken the trouble to consider evidence relating to alleged harms caused by
the simple possession of child pornography, as opposed to its creation or
dissemination. Police and other witnesses for the Crown presented points such as
the possibility of paedophiles being stimulated by the material to commit
offences against children, or using it in the so-called "grooming
process" to show to children. The judge did not ignore such factors but he
also weighed them in the balance with countervailing ones.

Why this angle?

Before touching upon these issues, I feel I
should clarify why I am approaching the subject of sexual privacy and
paedophilia from the pornography angle, when alternatively I could be discussing
the more radical and ultimately more interesting proposition: namely that
consenting children and adults have a right to private intimacy together just as
lesbians and gay men do, or any other consenting partners. The answer is
threefold.

Firstly the consent
issue is a complex one which would inevitably take us way beyond privacy, which
is the focus of this symposium.

Secondly, the
personal use of pornography is quintessentially a private matter.

Thirdly, and most
significantly, the private possession of child pornography has become the target
of massive state repression: it has become a means for identifying and labelling
people as deviants rather than protecting children.

This repression in practice results in the
harassment of legitimate artists, political activists and sometimes perfectly
ordinary families. It also generates an image of paedophiles in the public
imagination in which adult sexual attraction to children is reduced to a
one-dimensional, one-track-mind phenomenon. As a mental construct,
"paedophiles" come to be seen as interested in dirty pictures, or in
plotting to molest children, and as having nothing positive to offer a child,
such as friendship and love. So let it be said straight away that this
simplistic picture is grossly misleading. I personally have a number of
paedophile friends who have no use for pornography themselves and indeed express
a distaste for it. Some even get angry with me for making it an issue, saying
the whole discussion lowers yet further the tone of public discourse on
paedophilia.

Background paper

Returning, briefly, to the Canadian judgement,
I would point out that I have reviewed the major elements of its reasoning in a
background paper I have written for this symposium, with footnotes
and references, which I am making available to everyone here today as a
Word file on a floppy disk. This considers such factors as, for instance, the
cathartic use of child pornography in reducing sex crimes against children, and
challenges such notions as the idea that making erotic images of minors
necessarily involves abusing the children depicted.

The Canadian Ruling

I have briefly mentioned the over-broad impact
of child pornography laws on people who would not generally be considered
paedophiles, such as the ordinary parents who sometimes naively suppose pictures
of their naked kids playing in the bath will be regarded as innocent at the
photo lab. What the British Columbia judges understood, however, goes far beyond
the problem of over-broadness. It is something deeper and more subtly important.
They understood that even when law enforcement is apparently successful in
targeting paedophiles rather than so-called normal people (a false dichotomy, by
the way, as I point out in my longer [background] paper) the intention behind such targeting
is a dangerous one for society. The wording of the various laws against child
porn, in Canada and elsewhere, generally has nothing to say about paedophiles.
The laws speak only of the protection of children, not the thoughts and desires
of potential offenders.

Demonisation

But law enforcement officers speak a different
language, a language shared with politicians and the media in the last quarter
century, during which the child porn laws have been developed. It is the
language of demonisation, in which the word "paedophilia" has
popularly come to symbolise pure, undiluted evil, with the implication that
nothing must be allowed to stand in the way of a ruthless war to bring about its
extirpation. It is a language in which police, politicians and journalists have
colluded to link unreasonably a particular sexual orientation with moral
degeneracy and high levels of harm.

The issue of harm

Like the child porn laws, the recent landmark
paper by Rind, Bauserman and Tromovitch makes no mention of paedophilia.
But its findings could hardly be more significant to the view society takes of
paedophiles, as I imagine many of you already know. This meta-analysis based on
59 studies of college students showing the effects on those who had been
involved as children in sexual encounters with adults provides an important
corrective to the view that such encounters are always gravely traumatic. A
careful statistical analysis showed that many problems which the original
researchers had uncritically assumed to be caused by sexual abuse could more
plausibly be attributed to generally inadequate family environments, with which
they were much more strongly correlated.

Similarly, the harm supposedly caused to
children from being photographed naked or taking part in sexual activity with
their peers or with grown-ups has been greatly exaggerated. There is no more
intrinsic reason why any harm at all should result from such activities than
from children going with their parents on a naturist holiday. Not that there is
no need to for genuine concern. We are right to worry over the possibility that
children will be exploited against their will, that rape or sadistic attacks
will be perpetrated on camera. The production of such pictures is vanishingly
rare, however, and there is no shortage of criminal law to deal with any
perpetrators who are caught. Even in such cases, though, we would be hard put to
blame the private viewer of such material for creating a market in it. There is
no means, no even on the Internet, to buy and sell such material. Illegal images
may be posted, but this will invariably be done anonymously or with a phoney
"from" address – for obvious reasons. This means that it is
impossible to make money on these activities. From time to time someone may
naively hope do so, lured by claims in the media that it is a profitable
business. These commercial attempts have always been stopped very quickly: If
the potential customers can find the producer then so can the police. The notion
that there is a vast child porn industry, organised by some ruthless mafia, is
simply a myth.

Throughout the Western world, and increasingly
beyond, we find barriers being set up between adults and children. In the name
of protecting innocence we are enforcing emotional and physical separation of
age classes in a sort of generational apartheid that sees fathers afraid to hug
their children too affectionately and teachers' unions advising that teachers
should keep a minimum gap of one metre between themselves and their pupils. The
barriers are invisible but strong, enforced by a climate of fear – people are
becoming terrified of being identified as a paedophile.

And what is a paedophile?

As sex researchers you might think he or she
is a person who is exclusively or to a significant degree sexually attracted to
pre-pubertal children. But as observers of the social and political scene you
would have to conclude that a paedophile is a monster who attacks and defiles
innocence. On this definition there can be no such thing as an innocent or non-practising
paedophile, though there are in fact saintly individuals who manage heroic
life-long feats of restraint – people who, especially if they are elderly
bachelors, find themselves rewarded with nothing but constant suspicion. A
paedophile thus by definition cannot be an affectionate person, nor can a child
be fond of him once he is unmasked like some alien in a horror movie. He may for
years have seemed to be a pleasant, caring, kind, decent, honourable man, but of
course that is all part of his cunning disguise. And there can be no legitimate private
thoughts and private fantasies where such a monster is concerned.

The sting operations and mass police raids we
have seen in recent years against child porn actually have a significance that
does not readily meet the eye. The deep purpose of both kinds of operation is
not the investigation of lesser crimes such as the private possession of
pornography. The underlying purpose is to invade the privacy of the mind – not
in order to find out what offences someone has committed but what kind of person
he is. Possession of child porn is being used to generate evidence of paedophile
identity, of paedophile ethnicity, one might almost say, such that often
entirely harmless people can be registered and henceforth viewed with lifelong
suspicion, surveillance and coercion.

A New Zealand lawyer in the successful appeal
case of Moonen, already mentioned, has drawn an interesting parallel with
so-called "circumstances of indecency", which can be used in indecent
assault cases before the courts to establish evidence of indecent intent in,
say, the way in which a child was touched. In private correspondence with Moonen
this lawyer wrote: "The court… decides whether an assault is indecent. I
believe the significant shift in public and legal perceptions has been the
establishment of a logical and simple link where a paedophile identity is
understood to guarantee indecent intent. If you are paedophile then indecent
intent is deemed proved. I believe the use of pornography is not primarily a
concern for the child in the image, but the way the material is judged to
establish an identity for the individual being charged."

This invasion of private fantasy makes for a
cast-iron guarantee that grave injustices will be perpetrated, not least because
it flies in the face of evidence that pornography may be used cathartically: its
possession may well indicate an intent not to get sexually involved with
a child but to find sexual gratification with pornography as a substitute.

The second suggestion: Privacy for Children

Protection of innocence?

On its own this would be a dismal enough tale,
but unfortunately there is another side to the story. If paedophiles are the
vilified blacks of the new generational apartheid, children are in a remarkably
analogous position to that of the white women who used to be
"protected" by lynch mobs of Ku Klux Klansmen in the American South.
The dominant white male culture of the old South in the slavery era held that
women, like today's children, were not sexual beings; they were pure. Thus if
there was any sexual contact between them and a black man it could only mean one
thing: rape. White ladies were not allowed to have sexual feelings for black
men; it was literally unthinkable. Women who dared to break this iron taboo were
ladies no longer, just whores.

Nowadays, the locus of sexual anxiety has
shifted towards children. As this anxiety has been cranked up and up in recent
decades, we have been seeing increasingly repressive measures designed not to
protect children themselves but to protect the myth of childhood innocence in
which society has invested so heavily. Punishing children for sexual involvement
with adults, however, would be too nakedly a contradiction of their victim
status. It would imply they had known what they were doing, and were not
innocent. In order to preserve this notional innocence of the child, it is far
easier to blame the adult, the despised paedophile, whatever the facts of the
case may have been.

But when children have sex with each other
there is no adult available to blame. Scapegoating the paedophile as-it-were
"ethnic minority" is not an option. Instead, the repression of
children's sexuality needs a secondary scapegoat. Clinging ever more desperately
to the dogma that children in general are non-sexual, a minority of kids are
being stigmatised as deviants and delinquents when they are caught in sexual
activity with their peers. There have even been attempts to criminalise sexual
activities in which no single child played a dominant role, so that it was not
possible to blame an allegedly abusive power relationship of a bigger or older
child over a smaller or younger one.

Children’s privacy

Creating the concept of child sexual deviants,
analogous to "fallen" Southern women, has been one aspect of modern
Western society's efforts to preserve the innocence myth. Ideally, from a
conservative point of view, the embarrassment of seeing kids on sex registers
and exposed as sex ring participants, would be avoided if at all possible. So
what we are seeing alongside these highly public but fairly rare cases is a much
more pervasive phenomenon: the invasion of all children's privacy for the
purpose of sexual repression.

Children, it is true, have always been spied
on by their parents. Rightly or wrongly, mom – usually mom not dad – has
gone rooting through pockets, and bedroom drawers. If a youngster has kept a
diary, chances have always been it would be read by a parent from time to time,
especially if the child insisted its contents were secret. Nothing new in that.

Anne Frank

Incidentally, for those who shake their heads
disapprovingly at the idea that children these days are becoming precociously
"sexualised" as a result of pernicious modern exposure to sex on TV,
in the movies and so forth, the diary of Anne Frank is worth reading in the
unexpurgated edition that has been available in recent years. One wonders even
whether these days the brave girl revered around the world as an icon of
fortitude in the face of Nazi oppression, would be branded a sexual delinquent
in the light of passages like this one, in which she refers to a schoolfriend,
when the two girls would have been about 12 years old:

"…Sometimes when I lie in bed at night
I feel a terrible urge to touch my breasts and listen to the quiet, steady
beating of my heart. Unconsciously, I had these feelings even before I came
here. Once when I was spending the night at Jacque's, I could no longer restrain
my curiosity about her body, which she'd always hidden from me and which I'd
never seen. I asked her whether, as proof of our friendship, we could touch each
other's breasts. Jacque refused. I also had a terrible desire to kiss her, which
I did. Every time I see a female nude, such as the Venus in my art history book,
I go into ecstasy. Sometimes I find them so exquisite I have to struggle to hold
back my tears. If only I had a girlfriend!"

If Anne's parents had spied on her diary,
which they may wisely not have done in view of the family's exceptionally trying
circumstances of confinement in hiding, they might also have been shocked to the
core by her views on the overrated nature of maidenly purity and her relentless
but unsuccessful efforts to seduce a teenage boy who shared their secret
accommodation.

One extraordinary irony of Anne Frank's
desperate situation is that until the Nazis discovered her family's hiding place
in Amsterdam, she had at least enjoyed a great deal more privacy – privacy in
her mental life and intimate personal relations – than is generally available
to many youngsters of comparable age today.

COPPA

What we are seeing now is an increased level
of parental anxiety to such an extent that it is finding political expression,
with the force of legislation deployed to systematically invade children's
private lives. COPPA, The Children's
Online Privacy Protection Act in the US is a prime example. This measure,
which is not yet operational and which is rightly being resisted by the broadly
anti-censorship online community, would require that any
website or online service directed to children
should obtain parental consent before collecting information from children under
the age of 13.

Let's consider what this could
mean for the children. While it may be desirable to put restrictions on the
promotional and advertising ploys of commercial interests aimed at youngsters,
what if those young people themselves want to register with a site and be put on
a mailing list? Maybe it’s the fan club site of a famous Hollywood star; or
maybe the only claim to fame of the starlet in question is that she has enormous
breasts and does a lot of nude scenes. In either case, as
a friend of mine remarked, I am having awful trouble understanding how forcing
children to involve their parents is going to "protect their privacy".
What it looks like to me is not protection of their privacy but invasion of it
– the language of the law is an Orwellian inversion of the truth.

The threat of COPPA is that it would extend
parental control over their children in the one area where they have enjoyed a
small measure of personal freedom and privacy in recent years, thanks to the
relative lack of net-headedness and technical savvy of many parents. Kids have
to some extent been left alone in their bedrooms, able to explore the cyber
world with a freedom no longer available to them in the physical world of their
immediate environment. When I think of my own childhood, and the freedom I
enjoyed to roam for hours with my pals on foot and by bike, across town and
country in the 1950s, it saddens me deeply to contemplate the prison so many
kids are forced to live in these days.

Concerned, loving parents have been sold the
myth that it's a big bad world out there, with weird strangers out to get their
kids and do unspeakable things. But real horrors are exceedingly rare and the
most truly abusive acts against children, including murder, take place in the
home, perpetrated by parents – "family values" are only as good as
the family that holds them. So what we are getting, in the name of protecting
children first from "stranger danger" and now from the Wild Wild Web,
is constant surveillance and control over all children, such that they have no
space to be themselves. They have no private life, no way of standing a little
apart from their adult controllers in ways that enable them to develop as
autonomous individuals.

State looks in the bedroom

A rallying cry of the reformists, in the days
when the British law forbidding adult male homosexual acts was coming under
challenge, was that the state had no business in the "bedrooms of the
nation". It was a strong slogan because it appealed within the political
classes to everyone's sense of privacy. There were a good many thoroughly
heterosexual members of parliament who would not have wished a light shone into
their own bedrooms, exposing their own sometimes none too respectable
enthusiasms, from bondage to extra-marital affairs.

If we were to apply the principle
consistently, however, we would have to look beyond the bedrooms of the nation.
We would have to include the school dormitories of the nation, behind the bike
sheds of the nation, in the long grass of the nation. These are the places where
kids have traditionally experienced a measure of sexual privacy and initiation,
out on the margins, a little beyond the reach of adult surveillance. This wild,
marginal terrain has been part of the ecology of childhood but, like the rain
forests, it is under pressure, undervalued and disappearing fast.

Private space for children

Whether we can begin in Western society to
realise what is happening and start to move in another direction is beyond the
scope of this paper. My purpose in giving this address has simply been to set
out what I see going on, from the particular perspective available to me, in the
hope that as sex specialists with an interest in privacy issues some of you will
choose to pick up the ball and run with it in your own style. It may well be
that many of you, as scientists, will see your task more in terms of
investigating and describing social and physical realities than with crusading
to move society in any particular direction. But what you will readily accept, I
believe, is that concern over civil rights such as sexual privacy is inevitably
a matter of cultural and political dynamics in which we all have a stake as
individuals and citizens; in this respect there can be no neutrality.